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Case Brief · caselaw.co.ke
Supreme CourtStruck OutPetition E036 of 2025

Gwaro v Kenya Revenue Authority

Supreme Court of Kenya
19 June 2026
2,406 words in judgment
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals that merely dress up employment disputes as constitutional cases.

What this practically means

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The Supreme Court of Kenya struck out an appeal from a former KRA employee because the case was really about employment law, not constitutional interpretation. The Court said that simply mentioning constitutional rights in your appeal papers does not give it jurisdiction. The real issues—whether the dismissal was harsh and whether a review application was properly handled—were matters of employment and procedural law, not constitutional questions. This means the Court will not hear appeals that are fundamentally about other areas of law just because they are framed as constitutional matters.

Executive summary

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The Supreme Court of Kenya, in a unanimous judgment delivered on 19th June 2026, upheld a preliminary objection by the respondent, Kenya Revenue Authority, and struck out the appellant's petition of appeal for want of jurisdiction. The appellant, Eliud Nyaega Gwaro, had been summarily dismissed from his employment with the respondent on 31st August 2018. His claim before the Employment and Labour Relations Court (ELRC) was dismissed on 29th March 2021, and his subsequent application for review was also dismissed. The Court of Appeal dismissed his appeal on 20th June 2025. The appellant then filed a petition of appeal to the Supreme Court under Article 163(4)(a) of the Constitution, arguing that the appeal involved the interpretation or application of constitutional rights under Articles 35, 41, 47, and 50. The respondent filed a preliminary objection challenging the Court's jurisdiction, contending that the appeal was essentially an employment and procedural dispute, not a constitutional matter. The Supreme Court agreed with the respondent. It held that the appellant's core complaint was about the harshness of his dismissal and the denial of his review application, which were matters of statutory and procedural law under the Employment Act, the Civil Procedure Rules, and the ELRC (Procedure) Rules. The Court found that the constitutional issues raised were incidental and had not been the subject of litigation or determination in the courts below. The Court distinguished the appellant's reliance on John Florence Maritime Services Limited, noting that in that case constitutional issues were central. The Court followed its holding in Lawrence Nduttu & 6000 others Vs Kenya Breweries Limited & Another that mere invocation of constitutional provisions in pleadings is insufficient to confer jurisdiction. The Court struck out the petition with costs to the respondent, but ordered that the security deposit of Shs.6,000/- be released to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether this Court possesses the jurisdiction to entertain the instant appeal, which the appellant submits has been filed as of right

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal that is essentially an employment dispute dressed in constitutional garb.

Holding

The Court lacks jurisdiction because the appeal does not involve the interpretation or application of the Constitution; it is a routine employment and procedural dispute.

Reasoning

The Court examined the appellant's grounds of appeal and found that the core complaint was about the harshness of summary dismissal, procedural unfairness, and the dismissal of a review application. These issues were determined by the lower courts under the Employment Act, the Civil Procedure Rules, and the ELRC (Procedure) Rules. The appellant's references to constitutional Articles 35, 41, 47, and 50 were incidental and not the subject of litigation or determination in the courts below. The Court distinguished the appellant's reliance on John Florence Maritime Services, noting that in that case constitutional issues were central and unavoidable.

02

Whether the appellant demonstrated that the Court of Appeal engaged in constitutional interpretation or application.

Holding

The appellant failed to demonstrate that the Court of Appeal embarked on a substantive trajectory of constitutional interpretation or application.

Reasoning

The Court reviewed the Court of Appeal's judgment and found that it analyzed whether the 'ingredients for review' were met under Order 45 and Rule 33, and whether the trial judge exercised her discretion judiciously. No constitutional provision was interpreted or applied as a primary issue. The appellant's petition of appeal raised issues relating to evidence and judicial discretion, not constitutional contestation.

Legal principles established

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  • The Supreme Court's jurisdiction under Article 163(4)(a) is limited to cases that genuinely involve interpreting or applying the Constitution.
  • Mentioning constitutional provisions in pleadings is not enough to give the Supreme Court jurisdiction over an appeal.
  • Constitutional issues raised in an appeal must have been actually litigated and decided in the lower courts.
  • Employment disputes about dismissal, procedural fairness, or review applications are not constitutional matters simply because they reference constitutional rights.
  • The Supreme Court will not hear appeals that are essentially about statutory or procedural law dressed in constitutional language.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 10th September 2025 filed by the respondent is upheld.
  2. 2.The Petition of Appeal dated 4th August 2025 is hereby struck out for want of jurisdiction.
  3. 3.Costs of the Petition and the Preliminary Objection are awarded to the respondent.
  4. 4.The sum of Shs.6,000/- deposited as security be released to the appellant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal No. E257 of 2023
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Appeal against the Court of Appeal judgment

The Court lacked jurisdiction under Article 163(4)(a) as the appeal did not involve the interpretation or application of the Constitution.

Costs

Costs of the Petition and the Preliminary Objection are awarded to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the mere allegation in pleadings by a party that clothes an appeal with the attributes of constitutional interpretation or application is insufficient to confer jurisdiction
p. 4 Supreme Court jurisdiction under Article 163(4)(a)
the constitutional issues raised in an appeal as of right must have been the subject of litigation and determination in the courts below
p. 4 Requirement for constitutional issues to be raised in lower courts
the focus of the present appeal ought to revolve around whether the conditions for review under Order 45 of the Civil Procedure Rules and Rule 33 of the ELRC (Procedure) Rules had been met. This, in our view, does not raise constitutional questions but rather the routine application of statutory and procedural law.
p. 4 Distinction between constitutional and statutory/procedural issues

Key timeline

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2018-08-31
Eliud Nyaega Gwaro summarily dismissed from KRA employment.
2021-03-29
Employment and Labour Relations Court dismissed his claim.
2025-06-20
Court of Appeal dismissed his appeal.
2025-08-04
Appellant filed petition of appeal to Supreme Court under Article 163(4)(a).
2025-09-10
KRA filed preliminary objection challenging Supreme Court's jurisdiction.
2026-06-19
Supreme Court upheld objection and struck out appeal for want of jurisdiction.

Practical implications

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For lawyers

Draft appeals with jurisdictional precision

When appealing to the Supreme Court under Article 163(4)(a), ensure the core dispute genuinely involves constitutional interpretation or application. Avoid merely citing constitutional articles as window dressing. If the lower courts decided the case on statutory or procedural grounds, the Supreme Court will strike out the appeal. Consider filing a notice of appeal in the Court of Appeal first to preserve any constitutional arguments for the Supreme Court.

For businesses

Employment disputes stay in employment courts

If you are an employer facing an employment dispute, note that the Supreme Court will not hear appeals that are essentially about employment law, even if the employee claims constitutional rights were violated. The proper forum for such disputes remains the Employment and Labour Relations Court and the Court of Appeal. This ruling reinforces that employment matters are resolved within the specialized employment court system, not the Supreme Court.

For individuals

Know the right court for your appeal

If you lose an employment case, do not assume you can appeal directly to the Supreme Court just because you believe your constitutional rights were violated. The Supreme Court only hears cases that genuinely involve interpreting the Constitution. For employment disputes, your appeal should go to the Court of Appeal. Filing in the wrong court wastes time and money, and you may have to pay the other side's legal costs.

Frequently asked questions

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Can I appeal my employment dismissal to the Supreme Court in Kenya if I mention constitutional rights?+

No. The Supreme Court ruled that simply mentioning constitutional rights in your appeal papers does not give it jurisdiction. Your case must genuinely involve interpreting or applying the Constitution. Employment disputes about dismissal, procedural fairness, or review applications are handled by the Employment and Labour Relations Court and the Court of Appeal.

What is Article 163(4)(a) of the Kenyan Constitution?+

Article 163(4)(a) gives the Supreme Court jurisdiction to hear appeals from the Court of Appeal in cases that involve the interpretation or application of the Constitution. This means the appeal must be about what a constitutional provision means or how it should be applied, not just a regular dispute that mentions constitutional rights.

What happens if I file an appeal in the Supreme Court that is not a constitutional matter in Kenya?+

The Supreme Court will strike out your appeal for want of jurisdiction. You will likely have to pay the other side's legal costs. In this case, the appellant also lost the security deposit of Shs.6,000/- (though the Court ordered it released to him). Always check if your case genuinely involves constitutional interpretation before filing.

Does the Supreme Court in Kenya hear appeals about employment law?+

Generally, no. Employment disputes are handled by the Employment and Labour Relations Court and the Court of Appeal. The Supreme Court only hears appeals that involve interpreting or applying the Constitution. If your employment case is about dismissal, procedural fairness, or review applications, it belongs in the employment court system, not the Supreme Court.

Cite this brief

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Cite this brief

Caselaw, "Gwaro v Kenya Revenue Authority", Case Analysis (2026). Petition E036 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/40/eng@2026-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.